George Coleman Hudgins v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Coleman and Bray
Argued at Norfolk, Virginia
GEORGE COLEMAN HUDGINS
MEMORANDUM OPINION * BY
v. Record No. 0582-95-1 CHIEF JUDGE NORMAN K. MOON
JULY 16, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF YORK COUNTY
G. Duane Holloway, Judge Designate
Gail Starling Marshall for appellant.
Richard B. Smith, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
George Coleman Hudgins appeals his conviction, after a bench
trial, of using a telephone to threaten arson in violation of
Code § 18.2-83, and of two counts of using a telephone to
threaten an illegal act in violation of Code § 18.2-427. He
appeals on the grounds that the indictments were defective and
that the evidence was insufficient to show his intent. We affirm
the convictions.
Hudgins' offenses involved a former girlfriend, Deanna
Nemergut. Ms. Nemergut terminated her relationship with Hudgins
in December 1993. Ms. Nemergut was living with her parents in
January 1994 when Hudgins began to make harassing telephone calls
to the household. On January 8, 1994, he called Ms. Nemergut and
told her that he was going to come over and burn her house down.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Ms. Nemergut believed that Hudgins was "drunk or on something."
On January 23, 1994, Hudgins called again and told Ms. Nemergut
that he wanted the two of them to be together and if they could
not be, he would blow her head off. She believed that Hudgins
would hurt her because he had done so in the past.
Ms. Nemergut's mother, Mrs. Paula Nemergut, received
numerous harassing calls from Hudgins. On January 29, 1994, he
called, identified himself, and told her that he would slit her
throat. He called again later the same day and reiterated his
threats against her. He also stated that he knew Deanna Nemergut
loved her son more than anything in the world and that he would
kill "the little bastard" as well.
Hudgins admitted making several calls, but claimed that he
did not remember what he said. He said he had been drinking, but
did not know how much. He acknowledged that he is an alcoholic
and that prior to making the calls he had been in Eastern State
Hospital due to an overdose of valium. Ms. Nemergut testified
that Hudgins was "very decent" when sober but "out of control"
when drinking. She stated that during his angry outbursts
against her, Hudgins knew what he was saying, but the next day
would claim that he did not remember.
Hudgins was indicted for two violations of Code § 18.2-427.
Under that statute, it is a Class 1 misdemeanor for any person
to "use obscene, vulgar, profane, lewd, lascivious, or indecent
language, or to make any suggestion or proposal of an obscene
nature, or threaten any illegal or immoral act with the intent to
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coerce, intimidate, or harass any person, over any telephone or
citizen's band radio . . . ."
The indictments read as follows:
THE GRAND JURY CHARGES THAT:
On or about January 23, 1994, in the County of York,
Virginia, GEORGE C. HUDGINS, did threaten an illegal
act with the intent to coerce, and intimidate Deanna
Christine Nemergut over the telephone.
(18.2-427) of the Code of Virginia (1950) as amended
Use of profane, threatening or indecent language over
public airways.
* * * * * * *
THE GRAND JURY CHARGES THAT:
On or about January 23, 1994, in the County of York,
Virginia, GEORGE C. HUDGINS, did threaten an illegal
act with the intent to coerce, and intimidate Paula
Nemergut over the telephone.
(18.2-427) of the Code of Virginia (1950) as amended
Use of profane, threatening or indecent language over
public airways.
* * * * * * *
Hudgins argues that these indictments improperly charged him
with two offenses, i.e. using profane language over the telephone
and threatening an illegal act over the telephone in order to
coerce and intimidate. See Walker v. Commonwealth, 12 Va. App.
438, 443, 404 S.E.2d 394, 396 (1991). Hudgins argues in the
alternative that if the indictment is interpreted to charge him
with the use of profane language, then he was convicted of a
different offense than the one charged in the indictment. See
Griffin v. Commonwealth, 13 Va. App. 409, 411, 412 S.E.2d 709,
711 (1991).
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Hudgins did not challenge the indictments until after the
verdict against him. He has therefore waived his right to do so
on appeal. Washington v. Commonwealth, 216 Va. 185, 192, 217
S.E.2d 352, 354 (1975). At this stage of the proceedings,
Hudgins can object only that the Commonwealth failed to inform
him, through indictments or otherwise, of the "cause and nature"
of the offenses for which he was tried and convicted. Virginia
Constitution, Article I, § 8; Forester v. Commonwealth, 210 Va.
764, 766-67, 173 S.E.2d 851, 854 (1970); Henson v. Commonwealth,
208 Va. 120, 124-25, 155 S.E.2d 346, 349 (1967). 1
The indictments in this case adequately informed Hudgins of
"the cause and nature" of the offenses for which he was to be
tried, and indeed were not defective. The indictments charged
Hudgins with using a telephone to threaten an illegal act with
the intent to coerce and intimidate. This is one of the crimes
set forth in Code § 18.2-427. See Perkins v. Commonwealth, 12
Va. App. 7, 14, 402 S.E.2d 229, 233 (1991). The language
following the cite to the statute was merely a summary of the
content of that statute, not a description of a different
offense. Such surplus language in an indictment does not
invalidate it. See Code § 19.2-226(9); Black v. Commonwealth,
223 Va. 277, 281-82, 288 S.E.2d 449, 451 (1982). Hudgins has no
basis on which to challenge the indictments.
1
The requirement for indictment is not jurisdictional, but
merely procedural. Forester, supra, 210 Va. at 766-67, 173
S.E.2d at 854.
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Hudgins also contends that the evidence was insufficient to
show that he acted with the requisite intent. Perkins, 12 Va.
App. at 15, 402 S.E.2d at 234. The Commonwealth argues that
Hudgins failed to preserve this claim under Rule 5A:18. While
Hudgins did not make a motion to strike, he raised the
sufficiency issue in his closing argument. He therefore
preserved this issue for appeal. See Fortune v. Commonwealth, 14
Va. App. 225, 227-28, 416 S.E.2d 25, 26-27 (1992); Lee v. Lee, 12
Va. App. 512, 516, 404 S.E.2d 736, 738 (1991).
On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom. Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).
Viewed in the light most favorable to the Commonwealth, the
evidence showed that Hudgins placed three telephone calls in
which he made specific, personal threats against a former
girlfriend and her mother. He was angry at Ms. Nemergut because
she had broken up with him, and wanted her to resume their
relationship. The nature of the threats and the surrounding
circumstances are sufficient evidence that Hudgins intended to
coerce and intimidate his victims.
Hudgins argues that the Commonwealth did not prove intent
because he had been drinking when he made the calls and afterward
he could not remember what he said. Voluntary intoxication
cannot be used to negate intent except on a charge of first
degree murder. Chittum v. Commonwealth, 211 Va. 12, 17-18, 174
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S.E.2d 779, 783 (1970). While Hudgins acknowledged that he had
been drinking before making the calls, there was no suggestion
that he was compelled to do so. His state of intoxication while
making the phone calls thus has no bearing on his intent, and as
noted, the evidence demonstrates that he possessed the requisite
intent. For these reasons, we affirm the convictions.
Affirmed.
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